Tamaka v Police - [2012] NZHC 2302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-81 [2012] NZHC 2302

HUIA TAMAKA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 7 September 2012

Counsel: C Milnes for the Appellant
S McClean for the Respondent

Judgment: 7 September 2012

JUDGMENT OF MALLON J (Bail)

Introduction

[1] On 28 August 2012 Ms Tamaka was sentenced to two months’ imprisonment on six charges of shoplifting, all of which occurred on 24 June 2012. She appealed against that sentence. An appeal was filed immediately. Having lodged the appeal, counsel applied for bail pending the hearing of the appeal against sentence. The District Court Judge declined that application. She appeals against the decision to
decline her bail.

TAMAKA v NEW ZEALAND POLICE HC WN CRI 2012-485-81 [7 September 2012]

The District Court decision

[2] The District Court Judge has a discretion whether to grant bail pending an appeal. However bail pending appeal is unusual. The Court must not grant bail, unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. The factors relevant to the interests of justice are the apparent strength of the appeal, the length of the sentence that has been imposed, the likely length of time that will pass before the appeal is heard, the personal circumstances of the appellant and the appellant’s immediate family, and
any other consideration that the court considers relevant.[1]

[1] Bail Act 2000, s 14(3).

[3] In declining bail, the District Court Judge stated:

Appeal lodged. Application for bail s.14. In my view the sentence was inevitable. Particularly given her attitude to the offending and the appropriate sentence. Notwithstanding length of sentence and duty of care to children and personal circumstances I do not consider it in the interests of justice that bail be granted. The effects of sentence are all natural consequences of her offending. "New" information does not alter that. If delay in the appeal is encountered the High Court could consider any further applications for bail. Bail refused. Not in interests of justice. I see little strength in the appeal.

[4] I am advised that the “new information” referred to by the Judge was two- fold. First, that she could lose her Housing Corporation home if it was left vacant for 28 days (which was the effective length of her sentence). Secondly, that Ms Tamaka had signed the consent for home detention.

The bail appeal grounds

[5] The grounds of appeal against the decision declining bail are, in essence, that: (a) Ms Tamaka has viable grounds of appeal;
(b) There is extreme hardship to her and her young family;

(c) By the time the substantive appeal against sentence is to be heard in the High Court, Ms Tamaka will have served almost all of her prison term; and

(d)Ms Tamaka had shown that she could comply with bail conditions because she had not further offended or breached any bail terms while awaiting sentencing.

[6] As to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2302
Decision Date: 7 September 2012

CaseChat Overview and Summary

The case of Tamaka v Police involved an appeal against a decision by the District Court to deny bail pending an appeal against a sentence of imprisonment imposed on Ms Tamaka. The High Court was asked to review the decision of the District Court. The District Court had imposed a sentence of imprisonment on Ms Tamaka for multiple charges of shoplifting, and when she appealed against that sentence, she applied for bail pending the hearing of the appeal. The District Court declined her application for bail, and she appealed that decision to the High Court.

The legal issue for the High Court was whether the District Court had exercised its discretion to deny bail pending appeal correctly. The Court needed to determine whether the District Court had made an error in principle, failed to take into account relevant matters, taken into account irrelevant matters, or was plainly wrong in its decision. The Court had to consider factors such as the apparent strength of the appeal, the length of the sentence imposed, the likely length of time before the appeal would be heard, the personal circumstances of the appellant and her family, and any other relevant considerations.

In assessing the appeal, the High Court found that the District Court had taken into account the appropriate factors in making its decision. While the length of time before the appeal would be heard was a factor in favour of granting bail, the Court considered that the District Court had not erred in its decision. The Court noted that the District Court had contemplated the possibility of a delay in the appeal hearing, and had indicated that the High Court could consider further applications for bail if such a delay occurred. The High Court found that the District Court's decision was open to it and there were no errors in the Judge's approach. Therefore, the appeal against the decision to deny bail was dismissed.

In conclusion, the High Court upheld the District Court's decision to deny bail pending the appeal against sentence. The Court found that the District Court had exercised its discretion correctly and had taken into account all relevant factors in making its decision. The appeal against the decision to deny bail was dismissed, and Ms Tamaka remained in custody pending the hearing of her appeal against sentence.

Orders